St. Joseph one of two counties in Indiana where retention is still used.

St. Joseph one of two counties in Indiana where retention is still used.

Editor's note: This series on St. Joseph County's judges, how they're chosen and the justice they mete out was first published in The Tribune and on southbendtribune.com in September 2006. What's it take to get booted from a Superior Court bench in St. Joseph County? Who knows? It's never happened. Not even to Superior Judge Norman Kopec, who in 1982 received 58 percent of the vote -- about six months after he was caught shoplifting a bottle of skin lotion from a Martin's Super Market. Then-Prosecutor Michael Barnes chose not to charge him, on the condition he undergo treatment for his depression, which Kopec did. Judge Douglas D. Seely Jr. in 1974 also was granted another term by voters -- 67 percent of them -- about 18 months after he was involved in a suspicious car crash. Seely had hit a utility pole on Douglas Road near the University of Notre Dame campus, then fled the scene and refused to pull over as police followed him home with their lights flashing. Seely was not charged with a crime. Seely hit another utility pole at South Street and Lafayette Boulevard in July 1976. This time, police said he admitted to having drunk too much beer, and he was found in possession of a handgun that police had seized from a criminal defendant and that had been ordered destroyed. Seely refused to take a breath test and was charged with drunken driving, but a LaPorte County judge ultimately acquitted him, saying the judge appeared to police to be intoxicated because he had taken too much of a prescription sleep medication. Seely was to come up for a retention vote again in 1980, but he resigned in 1977. Since St. Joseph County adopted the retention system for Superior Court judges in 1973, judges have come up for retention on the ballot 34 times. On average, 73 percent of voters have voted for retention, according to a Tribune analysis of election records. Kopec's 58 percent "yes" vote has been the lowest margin thus far, followed by Judge Shephard J. Crumpacker with 64 percent in 1980 and Seely's 67 percent in 1974. Experts say judges have been just as entrenched in other states that have chosen the "merit selection" system over popularly electing judges. In 5,300 merit retention elections from 1964 to 2004 in 10 states, including Indiana, voters have declined to retain appointed judges only 52 times, said professor Larry T. Aspin, chair of Bradley University's political science department in Peoria, Ill. Aspin sees that as a testament to the high quality of judges selected through the merit system, rather than some flaw in the model. "If they were really bad, and I underline 'really,' I think more of them would be voted out," Aspin said. "I tend to prefer merit retention because you can have a judicial commission sift through and make sure you get someone with the best qualifications." Under the merit selection model, a local commission of lawyers, judges and citizens gathers when a judgeship becomes vacant, interviews judge applicants and sends three finalists' names to the governor. The governor then picks one to be judge. Every six years, voters then can vote "yes" or "no" on whether to retain the judge for another six years. Nineteen states and the District of Columbia now use some form of merit selection for trial court judges, according to the American Judicature Society, a nonpartisan group that works to improve the justice system. Merit selection rare Merit selection for trial court judges is not very common in Indiana. Although it still popularly elects its judge for Circuit Court -- which largely handles civil cases with the exception of a few types of crimes, such as welfare fraud -- St. Joseph is one of just two Indiana counties that uses merit selection for Superior Court judges. Lake County is the other. A 1973 state law implemented merit selection for Superior Court judges in the four largest counties outside the Indianapolis area: St. Joseph, Allen (Fort Wayne), Vanderburgh (Evansville) and Lake (Gary). Driving passage of the law was the idea that it was becoming increasingly difficult in larger metro areas for voters to learn enough about candidates to cast informed votes, recalled Frank Sullivan, a South Bend native and current state Supreme Court justice. But Vanderburgh and Allen switched back to elections in 1978 and 1982, respectively. Unlike most other Indiana counties, Vanderburgh and Allen have nonpartisan elections for Superior Court judges, meaning judge candidates cannot declare a political party affiliation. Fort Wayne attorney Robert Haller said he has mixed feelings about merit selection, which Allen County still uses to fill midterm judgeship vacancies. "It's good and bad," said Haller, 77. "The good part is you have a steady bench. The bad part is when you have a lousy judge, you just can't get rid of him. A judge has to be pretty bad, short of criminal, for the Supreme Court to do something about it." Haller and several other Fort Wayne attorneys told The Tribune they have heard that Allen County ditched merit selection after nine years because a Fort Wayne legislator wanted to settle a score with a local judge whom he wanted off the bench because of their personal dispute. Presumably, the lawmaker was confident that the judge would not survive a contested election. But none of the attorneys contacted could remember the names of the individuals supposedly involved. Nothing foolproof Evansville attorney Donald Wright said Vanderburgh County had more legitimate reasons for scrapping merit selection after just five years. Local attorneys agreed that several judges were performing poorly but realized there was not much they could do about it. "We quickly had some experience that told us we'll never get a bad one off of there," Wright said. Merit selection proponents say popular elections result in less qualified candidates than the judicial nominating commission process. But Wright said that process is not foolproof, either. "Even if you have the most legally qualified candidate, you don't know how they're going to act as a judge," Wright said. "They get on there and they're rotten or lazy or you don't know what's going to happen." Sullivan, who chairs the St. Joseph County Judicial Nominating Commission, concedes that the retention system -- also used by the Indiana Supreme Court and Indiana Court of Appeals -- is not perfect, but he thinks it's the best of all options. "It was seen as a better way to get more highly qualified judges on the bench if there was this screening process and they could stay on longer," Sullivan said, "rather than becoming swept up in the tide of a partisan election ... not on their merits but on the basis of which political party is doing better that year." 'A beauty contest' Sullivan was asked whether the retention system can allow a judge to stay on the bench too long, years after he has started making poor decisions or perhaps even grown senile, because voters are largely unaware of his performance. "That could happen," Sullivan said. "It's a weakness of the system. But I think if one looks around at partisan contested elections ... you (also) see people past their prime being elected over and over again." Although he favors a system that essentially creates an indirect rather than direct democracy, Sullivan said he thinks voters are "very qualified" to pick judges. "(But) I do think a judge's role is quite different as a matter of separation of powers. ... There is a value in distinguishing between candidates running for judicial office, as impartial arbiters of disputes, versus advocates for a particular set of positions. If someone is coming after you and attacking particular decisions you've made, I think that can undermine the judicial system." David Parker, assistant professor of political science at Indiana University South Bend, agreed. "Essentially I think election of judges is ridiculous and in contradiction of the founding principles," Parker said. Parker also thinks the average voter doesn't know enough about judicial candidates to elect the best ones. "It's basically a beauty contest," Parker said. "People see the name and say, 'Oh, I've heard of him.' Click. It's an information-less environment." Parker said it is "virtually impossible," even for voters who pride themselves on gobbling up as much information as possible in preparation for the election, to gauge a judge's job performance on the bench. Aspin, political science department chair at Bradley University, said a growing number of states are trying to give voters more of that knowledge. Arizona and Colorado are two states that have recently established judicial performance evaluation commissions. Evaluating judges' performance is difficult to do because the criteria is so ambiguous and based on a highly subjective value system, said Lawrence Baum, professor of political science at Ohio State University. For instance, Baum said, for many voters, taking a hard line on crime means handing out long prison sentences. Others might not agree. It would be more beneficial to evaluate judges based on their commitment to the job, their knowledge of the law and their overall fairness, Baum said. But it's not possible to gather data on those criteria like it is possible to put together sentencing information. "There's no way to know simply by looking at leniency or harshness whether a judge is doing well," Baum said.